As the concept of ‘unfairness’ is not defined in the Labour Relations Act (LRA), I propose that the act of an employer would be seen to be ‘unfair’ in labour law if it infringes on the employee’s entrenched rights, is one-sided, unnecessary and/or inappropriate under the circumstances.
In order to further understand how the concept of ‘unfairness’ is applied in labour law we need to examine the concept of ‘unfair labour practice’ as it is referred to in the LRA and as it is interpreted by arbitrators at the CCMA, bargaining councils and private dispute resolution bodies.
Section 186(2) of the LRA defines “unfair labour practice” as “any unfair act or omission that arises between an employer and an employee involving:
- unfair conduct by the employer relating to the promotion, demotion, probation (excluding dismissals of probationers) or training of an employee or relating to the provision of benefits to an employee;
- the unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee;
- a failure or refusal by an employer to reinstate or re-employ a former employee in terms of any agreement; and
- an occupational detriment, other than dismissal, in contravention of the Protected Disclosures Act, 2000 on account of the employee having made a protected disclosure defined in that Act.”
The word ‘unfair’ is mentioned several times in the above definition. For example, under part (b) of the definition the section mentions “…any other unfair disciplinary action…” However, without an explanation of what ‘unfair’ means the entire definition of an unfair labour practice is meaningless. For example, there are many fair actions relating to discipline and many unfair ones. How do we distinguish between these? In addition to the definition of ‘unfair’ that I proposed above it is useful to examine the way in which arbitrators attempting to resolve labour disputes decide whether an act of an employer is fair or unfair.
In the case of Bosman vs SA Police Services (2003 5 BALR 523) Bosman had been selected as the second best candidate by a selection committee for a promotion and a black female had been selected as the first choice for the position. The SAPS provincial commissioner then amended this selection decision recommending that Bosman be the first choice for the promotion. However, the committee decided that the black female should be promoted for reasons of population group representivity. However, the committee was unable to prove at arbitration:
- that the appointment of the black female would have promoted representivity and
- that the black female was the best suited candidate.
In the light of this the arbitrator found that the failure to promote Bosman was unfair and ordered the employer to promote her. The ‘unfairness’ decision here was made on the basis that:
- Bosman was the best candidate and therefore had the right to be promoted and
- the decision to promote the black female was inappropriate because she was not the best candidate and there was no proof that her promotion would have served the purpose of affirmative action.
In Tsaperas & Another vs Clayville Cold Storage (Pty) Ltd (2002 11 BALR 858) the arbitrator found that the suspension without pay of the employees constituted an unfair labour practice and ordered the employer to pay to the employees the remuneration that had been withheld. The basis for ‘unfairness’ in this case is that, at the time of the suspension the employees had not been found guilty of any misdoings and could therefore not be punished. It was not the suspension itself that was unfair but the punitive withholding of the employees’ pay. That is, this act was ‘unfair’ because it was inappropriate and one-sided. It also breached the employees’ right to remuneration where their absence from work was at the insistence of the employer.
In Van Amstel vs Eskom (2002 19 BALR 995) the CCMA found that the employer’s removal of the employee’s travel allowance was unfair as there was no legitimate reason for depriving him of this benefit. The ‘unfairness’ here lay in the infringement of employee’s right to a benefit for which he qualified and in the inappropriateness of the removal of the said benefit.
At the root of many if not all ‘unfair’ practices is the employer’s attempt to gain something. There is nothing wrong per se with an employer gaining something, as long as the employee does not lose out unfairly as a result. Thus, an employer is entitled to protect its interests or save money by disciplining an employee or changing the employee’s benefits provided that the discipline is merited or the loss to the employee is justified.
As always, the challenge for the employer is to judge when its actions are merited and justified. Due to the complexity of the law such judgement cannot be done via guesswork. Every employer must therefore obtain comprehensive and in-depth expertise in labour law via the use of a reputable labour law expert and via training of all levels of management in the application of labour law.